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A group of Monday morning quarterbacks who play the game and win agree that the failed Michael Jackson child molestation prosecution was overcharged, overtried and outgunned by a solid defense. In addition to providing an opportunity for attorneys to flex their 20/20 hindsight, the Jackson case highlights the high-pressure world of prosecutors who bring high-profile cases. Along with the media circus and intense scrutiny comes a heavy hand of mathematics: Prosecutors are expected to win cases because they statistically win a lot more cases than they lose. Bruce Cutler, who cut his teeth defending John J. Gotti in 1985 and currently represents rock music impresario and murder defendant Philip Spector, said prosecutors risk losing high-profile cases by overtrying them. “They put on these other acts and try to paint the client as an epitome of evil. They’re doing it in the Spector case as they did in the Michael Jackson case,” Cutler said. “Sometimes by bringing in these other acts, a jury can lose sight of what the charge really is,” Cutler said, adding that though this seems to be “done out of desperation on the part of the DA’s office, it’s unhealthy and unfair, and it’s character assassination.” THE ‘KISS’ RULE Echoing Cutler is Gregg L. Bernstein, a former federal prosecutor who now practices white-collar criminal law in the Baltimore office of Washington’s Zuckerman Spaeder. “As a general rule, prosecutors need to operate under the KISS principle: keep it simple, stupid,” said Bernstein, who has handled high-profile political corruption cases in Maryland. But problems ascribed to Jackson’s prosecution should not “take anything away from a defense lawyer who did a masterful job,” Bernstein added. That defense attorney Thomas A. Mesereau Jr. was able to make the trial about Janet Arviso, mother of purported victim Gavin Arviso — and not about Michael Jackson — “was really first-rate lawyering,” Bernstein said. Furthermore, rather than trying to downplay Jackson’s eccentricities, defense counsel “embraced Jackson’s oddness” as though to tell the jury “he’s an odd guy and has odd relationships with children, but he’s not a criminal,” Bernstein said. Jeffrey A. Modisett of Bryan Cave’s Santa Monica, Calif., office, who was the Marion County, Ind., prosecuting attorney in the 1991-1992 Michael Tyson rape case in Indianapolis, said that prosecutors risk losing high-profile cases that they attempt to try “like any other case.” When Modisett tried the Tyson case, he said that he learned to make adjustments as the case progressed, but that making them helped him to pull together a tighter case. The considerable resources that celebrities can bring to bear also have a large impact on areas such as the defense’s investigation of the case and motions practice, he said. Prosecutors cannot get away with “routine procedures” because gaps in evidence and dirty witnesses common to typical cases are magnified in a high-profile case, Modisett said. Furthermore, defense attorneys wait for high-profile cases to raise issues that can turn routine proceedings into mini-trials, and they “do it under the spotlight for maximum effect,” he said. Cutler summed up his experience in a message he received during his first Gotti trial from a lawyer friend who had successfully defended automobile innovator John DeLorean. “Howard Weitzman wrote me a note I still have that says ‘Welcome to the world in a fishbowl,’ which turned out to be prescient — and right.”

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